NATIONAL IMMIGRATION L AW CENTER Immigrants’ Rights Update Volume 15 Issue 6 October 8, 2001

persons and will not seek or use immigration information pro- Immigration Issues vided to local authorities. INS SUPPORTS WORLD TRADE CENTER RECOVERY EFFORTS BY PLEDG- On Sept. 21, Ziglar stated: “All of us in the INS family have ING NOT TO SEEK OR USE IMMIGRATION INFORMATION PROVIDED TO been deeply shocked and saddened by the terrible loss of life and LOCAL AUTHORITIES – Among the thousands of victims of the Sept. destruction in New York. We are committed to supporting the 11, 2001, attack on the World Trade Center in New York City were rescue and recovery efforts taking place at the World Trade Cen- many hundreds of immigrants. According to press reports, the ter. We have heard disturbing reports that some people whose missing and dead include nationals of at least 60 countries. Rec- loved ones are missing have not come forward because of immi- ognizing that victims of the disaster and their family members gration issues. We cannot let that happen. It is crucial that local include undocumented immigrants and that the family members authorities get the help they need in identifying victims and the may be deterred from coming forward by fears of deportation, missing. I want to personally urge the immigrant community to Immigration and Naturalization Service Commissioner James Ziglar come forward, and assure everyone that INS will not seek immi- has issued a statement to give assurance that the INS will not gration status information provided to local authorities in the arrest or detain immigrants seeking information about missing rescue and recovery efforts.”

IN THIS ISSUE IMMIGRATION ISSUES show ongoing disability ...... 9 INS supports World Trade Center recovery efforts by pledging not to seek or use immigration information 9th Circuit dismisses habeas petition challenging provided to local authorities ...... 1 expedited removal ...... 10 INS issues rule expanding its authority to detain EMPLOYMENT ISSUES noncitizens without charge in response to Federal officials denounce discrimination follow- WTC and Pentagon attacks ...... 2 ing terrorist attacks ...... 11 Legislation countering terrorism proposed ...... 2 NLRB certifies union despite immigration-related State Dept. publishes rules for 2003 diversity visa lottery ..... 3 objections by employer ...... 11 INS issues interim rule to implement V-visa provision Federal court finds INS selectively prosecuted Latino of LIFE Act ...... 5 employer ...... 12 EOIR issues interim rule for motions to reopen California and Connecticut approve laws benefitting NACARA suspension and cancellation cases immigrant workers ...... 13 pursuant to LIFE Act Amendments ...... 6 Supreme Court to hear back pay case involving BIA terminates removal proceedings for respondent undocumented worker ...... 13 with reduced sentence ...... 7 Workers’ Rights Trainings slated for Seattle & New York .... 13 AG extends TPS designation for nationals of Burundi, IMMIGRANTS & WELFARE UPDATE Sierra Leone, Sudan ...... 8 President orders DED for Liberians extended another year .... 8 Congress considers expanding nutritional assistance for immigrants ...... 13 LITIGATION New York extends immigrants’ eligibility for health 9th Circuit upholds BIA ruling that expungements do programs ...... 14 not eliminate the immigration effects of convictions ...... 8 NILC initiates public charge monitoring project ...... 14 9th Circuit rejects BIA’s requirement that applicants Disaster assistance information included with this for humanitarian exception in asylum cases must issue of IMMIGRANTS’ RIGHTS UPDATE ...... 14

FOUNDED IN 1979, THE NATIONAL IMMIGRATION LAW CENTER PROVIDES and publishes legal reference materials. NILC’s staff specializes in technical help to legal services programs, community-based non- immigration law and in immigrants’ employment and public benefits profits, and pro bono attorneys throughout the United States. NILC rights. In addition to this newsletter, NILC produces legal manuals, a also counsels impact litigation, conducts policy analysis and trainings, referral directory, and other community education materials. 3435 WILSHIRE BOULEVARD, SUITE 2850 • LOS ANGELES, CA 90010 • 213 639-3900 • fax 213 639-3911 • www.nilc.org OCTOBER 8, 2001 2 IMMIGRANTS’ RIGHTS UPDATE

INS ISSUES RULE EXPANDING ITS AUTHORITY TO DETAIN NONCITIZENS ing in them inadmissible or deportable. In a concession to law- WITHOUT CHARGE IN RESPONSE TO WTC AND PENTAGON ATTACKS – makers’ concerns, the current version of the bill no longer con- The Immigration and Naturalization Service has issued an interim tains a provision that would have made spouses and children of regulation, effective immediately, that expands the length of time terrorists inadmissible or deportable merely on the basis of their that the INS can detain noncitizens arrested without a warrant relationship to a terrorist. It also eliminated a provision under before the agency decides whether to bring removal charges which an alien would have been found inadmissible or deport- against them. According to the supplemental information pub- able on the mere basis of having given funds to a terrorist organi- lished with the rule in the Federal Register, the rule was issued zation or to an organization that engages in terrorist activity. without a period for public comment to enable the INS “to pro- Certification and Detention. The proposal creates a provision cess cases—including establishing true identities and communi- authorizing the Immigration and Naturalization Service to “cer- cating with other law enforcement agencies—that arise in con- tify” an alien, including a lawful permanent resident, if the attor- nection with the emergency posed by the recent terrorist activi- ney general has reasonable grounds to believe that the person ties perpetrated on United States soil.” may engage in, further, or facilitate terrorist activity or otherwise The rule amends 8 CFR section 287.3(d) to increase the period endanger the national security of the United States. Certified of time that the INS is permitted to detain a noncitizen without aliens may be detained indefinitely. charge from 24 hours to 48 hours and to allow “an additional Limits on Judicial Review. A prior version of the proposal sought reasonable period of time” in the event of “an emergency or other to proscribe all judicial review of certification. In contrast, the extraordinary circumstance.” The INS published the rule with a most recent version does allow habeas review in the U.S. District request for public comments, which must be received on or be- Court for the District of Columbia, and the scope of the review fore Nov. 19, 2001. 66 Fed. Reg. 48,334 (Sept. 20, 2001). would include all issues related to the detention, including certi- fication. LEGISLATION COUNTERING TERRORISM PROPOSED – In response to Super Retroactivity. The proposal would apply to all aliens, the tragic events of Sept. 11, two pieces of legislation countering even if they entered the U. S. before its enactment or whether terrorism have been proposed, one coming from the Bush Ad- their conduct occurred before passage. It would also apply to all ministration and the other from members of the House of Repre- past, pending, or future deportation, exclusion, removal, or other sentatives. immigration proceedings. Proposed by Attorney General John Ashcroft, the Anti-Ter- FEATURES OF THE PATRIOT ACT OF 2001 rorism Act of 2001 (ATA) contains sweeping provisions. The legislation is part of a package that also includes immigration Expansion of Terrorist Definition. The PATRIOT Act would ex- provisions, broadened authority for the use of law enforcement pand the definition of terrorism and terrorist activities as well as tools such as surveillance and wiretapping, and border security broaden the current grounds of inadmissibility and deportability measures. Lawmakers, both Republican and Democrat, have ex- relating to terrorist activities in a manner similar to that proposed pressed concerns about the legislation’s scope, especially its in the most recent version of the ATA. impact on civil liberties. Certification and Detention. Under the proposal, the attorney On Oct. 2, 2001, Congressman James Sensenbrenner (R-WI), general may certify an alien if he has reasonable grounds to be- chair of the House Judiciary Committee, and Congressman John lieve that the alien is engaged in terrorist activities or otherwise Conyers (D-MI), the committee’s ranking Democrat, introduced a engaged in activity that endangers national security. The INS more limited bipartisan bill titled the Provide Appropriate Tools may hold the alien in detention for up to seven days without Required to Intercept and Obstruct Terrorism Act of 2001 (PA- bringing charges. If the alien is not charged within seven days, TRIOT). The bill represents an attempt at a compromise between the attorney general must release the alien. In addition, the certi- some of the administration’s harshest proposals restricting civil fication process would be the nondelegable duty of the attorney liberties and the concerns of lawmakers, particularly with respect general or the INS commissioner. to immigration. Limits on Judicial Review. The proposal would allow judicial These proposals are extremely fluid and their details continue review of certification to be held only in the U.S. District Court for to be negotiated. Nevertheless, it is highly likely that passage of the District of Columbia. No other review, including review under an anti-terrorism bill with new restrictions on immigration and the general habeas corpus statute (28 U.S.C. § 2241), would be immigrants will take place before the end of this first session of permitted. The House bill does not place any limitations on the the 107th Congress, which is expected to adjourn by the end of scope of habeas review. Thus, as with the ATA, it is likely that an this month (October 2001). individual would be able to challenge his or her certification and Highlights of some of the immigrant-related provisions con- detention. tained in the current proposals follow. Since the details are rap- Retroactivity. There appear to be no practical differences be- idly changing, this summary is intended to provide only a general tween the retroactivity language contained in the ATA and the sense of the proposals being considered. House bill. However, the PATRIOT Act includes a provision that prohibits charges of inadmissibility or deportability against indi- IMMIGRATION HIGHLIGHTS OF THE ATA viduals who provided support to an organization that the State Expansion of Terrorist Definition. The bill would expand the Dept. later designates as a terrorist organization following the definition of “terrorism” and “terrorist activities” to encompass a bill’s enactment. Thus, an individual’s previous support of an broader range of activities, rendering aliens charged with engag- organization that is later designated to be a terrorist organization IMMIGRANTS’ RIGHTS UPDATE 3 OCTOBER 8, 2001 would not retroactively subject him or her to the PATRIOT Act’s as long as it is deemed necessary, including for DV-2003.) provisions. Eligibility for Lottery. To be eligible for the visa lottery, the Asylum Changes. The proposal would allow the State Dept. to applicant must meet two basic requirements: (1) the applicant disclose an asylum applicant’s confidential information to a for- must be a native of one of the limited number of countries whose eign government, if the attorney general has reasonable grounds natives qualify for the lottery (note: persons from these coun- to believe the alien is a terrorist. The information would bar the tries who are already in the U.S. are eligible to apply); and (2) the person from obtaining asylum. Current asylum regulations re- person must meet either the education or training requirement of quire such information to be treated as confidential. However, the DV program. In addition, the individual must submit a prop- under the proposal, confidentiality may not be breached if the erly completed application within the application period. asylum applicant fears persecution because his or her home gov- Natives of the following regions and countries are eligible to ernment considers the applicant to be a terrorist. apply for the visas: Additional Resources to Northern Border. The proposal calls for • AFRICA – all countries qualify. tripling from current staffing levels Border Patrol and INS person- • ASIA – all countries (including Israel and the Middle East, nel assigned to each of the states along the northern border. It Indonesia, Hong Kong S.A.R., which is counted separately from would also authorize an additional $50 million to the INS to im- China, and Taiwan) qualify—except China (mainland-born only, prove technology and acquire additional equipment for use at including Macau), India, Pakistan, Philippines, South Korea, and the northern border. Vietnam. Immigration Benefits to Victims. The bill contains provisions • EUROPE – all countries (extending from Greenland to Russia that would protect the family visa petitions filed by persons killed and including all countries of the former U.S.S.R., and also in- in the Sept. 11 terrorist attack. Surviving petition beneficiaries cluding components and dependent areas overseas of Denmark, must otherwise be eligible and admissible. France, and the Netherlands) qualify, except the following: Great Britain (United Kingdom) and its territories (including Anguilla, STATE DEPT. PUBLISHES RULES FOR 2003 DIVERSITY VISA LOTTERY – Bermuda, British Virgin Islands, Cayman Islands, Falkland Islands, The U.S. State Dept. has published a notice detailing application Gibraltar, Montserrat, Pitcairn, St. Helena, and Turks and Caicos procedures for the 55,000 immigrant visas to be available in fiscal Islands; however, Northern Ireland does qualify). year 2003 under the diversity visa lottery program (“DV-2003”). • NORTH AMERICA (which is not considered to include The application process once again will be a one-month, mail-in America south of the U.S.) – only the Bahamas qualifies (i.e., procedure; and this time it will run from noon (Eastern Time) of Canada does not qualify). Oct. 1, 2001, to noon of Oct. 31, 2001. • OCEANIA – all countries qualify (includes Australia, New In a separate notice, the State Dept. announced that it is mak- Zealand, Papua New Guinea, and all countries and islands of the ing a handful of changes to the regulations governing the pro- South Pacific). gram. The new regulations, which took effect on Aug. 31, 2001, • AMERICA SOUTH OF THE U.S. BORDER, AND THE CAR- clarify that under no circumstances may a consular officer issue a IBBEAN – all countries qualify except the following: Colombia, visa to an individual after the end of the fiscal year for which he or Dominican Republic, El Salvador, Haiti, Jamaica, and Mexico. she was registered. The new regulations also reiterate that at the A native of a country is someone who was born in the country end of that fiscal year, the petition is automatically revoked. In or someone who is chargeable to it under Immigration and Na- addition, the new rules clarify the signature requirement and imple- tionality Act section 202(b). The rules of chargeability allow the ment changes regarding photographs and the basis on which following categories of people to apply for lottery visas as na- applicants’ fulfillment of the training requirement will be evalu- tives of a qualifying country: (1) the spouse of someone born in ated. one of the qualifying countries; (2) the minor dependent child of The visa lottery was introduced in 1986 as a temporary proce- a parent who was born in a qualifying country; and (3) a person, dure to increase immigration from countries that, especially since regardless of age, (a) who was born in a country of which neither the 1960s, have sent relatively few immigrants to the U.S. In 1988 parent was a native or resident at the time of the person’s birth, the program was extended for two years. The Immigration Act of and (b) one of whose parents is a native of a qualifying country. 1990 then created a transitional program for three more years, The alternative education and training requirements for the followed in fiscal year 1995 by a permanent lottery program. diversity visa program are that applicants either (1) must have a Under the permanent diversity visa program, 55,000 immigrant high school education (twelve-year course of elementary and visas are allocated to the different regions of the world under a secondary education) or its equivalent or (2) for two of the past formula intended to allocate more visas to areas that have sent five years they must have worked in a job that requires at least relatively few immigrants in the previous five years than to those two years of training and experience. Under the amended regula- that have contributed large numbers of immigrants. Natives of tions, for applicants who register after July 31, 2001, their work countries that have sent more than 50,000 immigrants to the U.S. experience will be evaluated using the Dept. of Labor’s O*Net in the past five years are not eligible, and no one country can OnLine database. In previous years’ programs, the Dictionary of receive more than seven percent of the diversity visas issued in a Occupational Titles (DOT) had been used. For applicants who single year. (However, the State Dept. notes that the Nicaraguan registered for the program before July 31, 2001, O*Net OnLine and Central American Relief Act of 1997 (NACARA) allocates will also be used. However, the State Dept, notes, in cases where 5,000 of the DV visas for use in the NACARA program. The O*Net OnLine-based determinations differ from those based on reduction, which first took effect with DV-2000, will continue for the DOT, and the former disadvantages the applicant, consular OCTOBER 8, 2001 4 IMMIGRANTS’ RIGHTS UPDATE officers are authorized to use the latter. on the back of the photograph. Each photograph must be at- Though the lottery program imposes no age limits on who can tached to the entry by clear tape. Do NOT use staples or apply, usually persons under 18 will be unable to satisfy the edu- paperclips. The back of the entry may be used if there is not cation/work requirement. Persons who are selected for visas can enough room on the front to accommodate the photographs. adjust status in the U.S. if they are otherwise qualified for adjust- 7. THE APPLICANT’S SIGNATURE – Applicants who do not ment of status. Finally, persons who are in the process of apply- personally sign their applications will be disqualified. As clari- ing for a visa under a different visa category also can apply for fied by the new rules, the signature must be made in the applicant’s the diversity visa lottery. “usual and customary” manner, in his or her native alphabet. As A husband and wife can each submit an entry; if either is before, an initialed signature or block printing of the applicant’s selected, the other will qualify for a derivative visa. However, no name will not be accepted. Should applicants sign their name in person can submit more than one entry, and the applicant must the Roman alphabet and their native language employs a differ- personally sign the entry. If more than one entry is submitted for ent alphabet, they must also sign in the native alphabet. any person, that person will be disqualified from the program. The entry must be mailed (regular mail or air mail only; no Application Process. As noted above, a basic requirement to faxes, registered mail, hand delivery, express mail, etc.) in a regu- participate in the visa lottery is that the native of a qualifying lar or business-size envelope. The envelope must be between 6 country must submit one entry form within the application pe- and 10 inches long (15 to 25 cm) and between 3½ and 4½ inches riod. An entry consists of a plain piece of paper with the follow- wide (9 to 11 cm). No postcards will be accepted, nor will enve- ing information typed or printed in English (entries will be dis- lopes placed inside express or oversized mail packages be ac- qualified if they do not provide all of this information): cepted. The qualifying country or area of which the applicant is 1. APPLICANT’S FULL NAME – Last name, first name and a native, followed by the applicant’s full name and address as middle name, with the last (sur-/family) name underlined (e.g., shown on the application, must be printed or typed in English on Smith, Sara Jane). the front of the envelope in the top left-hand corner, followed by 2. APPLICANT’S DATE AND PLACE OF BIRTH, in the fol- the applicant’s name and full return address. Both the country of lowing order – Date of birth: day, month, year (e.g., “15 Novem- nativity and the country of the address must be shown, even if ber 1961”). Place of birth: city/town, district/county/province, they are the same. The address to which the application should country (e.g., “Munich, Bavaria, Germany”) (use current name of be mailed is the same for all applicants, except that the zip code country if different than at time of birth—e.g., Slovenia, rather differs depending upon the geographic area of the applicant’s than Yugoslavia; Kazakstan, rather than Soviet Union, etc.). native country. Address the envelope as follows: 3. APPLICANT’S NATIVE COUNTRY, IF DIFFERENT FROM If the qualifying country is in ASIA – COUNTRY OF BIRTH – If the applicant is claiming nativity based on being a national of a country other than his or her country of DV-2003 Program birth, this must be clearly indicated on the entry itself and at the Kentucky Consular Center upper left corner of the entry envelope. If an applicant is claiming 2002 Vista Crest nativity through a spouse or parent, this should be indicated on Lexington, KY 41902 U.S.A. the entry. 4. NAME, DATEAND PLACE OF BIRTH OF APPLICANT’S If the qualifying country is in SOUTH AMERICA, CENTRAL SPOUSE AND CHILDREN, if any – Applicants must include all AMERICA, OR THE CARIBBEAN – use the same address as for of their children, natural as well as all legally adopted and step- Asia, except use 4004 Vista Crest as the street number and 41904 children, who are under 21 and unmarried. Applicants’ spouse as the zip code. and children must be listed even if they no longer reside with the If the qualifying country is in EUROPE – same address, except applicant, and regardless of whether they will immigrate with the use 3003 Vista Crest as the street number and 41903 as the zip applicant. The instructions caution that failure to provide all of code. this information will disqualify the applicant. If the qualifying country is in AFRICA – same address, except 5. APPLICANT’S FULL MAILING ADDRESS – Make sure use 1001 Vista Crest as the street number and 41901 as the zip the address is complete and clearly written to ensure that the code. registration notice can be delivered; phone number is optional, If the qualifying country is in OCEANIA – same address, ex- but useful. cept use 5005 Vista Crest as the street number and 41905 as the 6. PHOTOS – A recent (less than 6 months’ old) 1½" x 1½" (37 zip code. mm square) photograph of the applicant, with the applicant’s If the qualifying country is the BAHAMAS – same address, name printed across the back of the photo. Under the new regu- except use 6006 Vista Crest as the street number and 41906 as the lations, the entry must also include recent photographs of the zip code. applicant’s spouse and children (natural as well as legally-adopted No fee is charged for sending in a visa lottery entry. The children and stepchildren). Photographs must be submitted even entries will each be numbered and selected at random for “regis- if the spouse or child no longer resides with the applicant and tration.” No advantage can be gained by sending an application regardless of whether they will accompany or follow to join the early in the application period, since all applications actually re- applicant in the U.S. Each family member must be represented in ceived during the application period will have an equal chance of separate photographs, as group photographs will not be accepted. being randomly selected within their regions. Persons whose The name and birth date of each family member must be printed applications are selected for registration will be notified by mail IMMIGRANTS’ RIGHTS UPDATE 5 OCTOBER 8, 2001 about the next steps to take to apply for visas between April and U.S. without having been admitted or paroled), 212(a)(7) (for not July 2002. The State Dept. selects more entries than there are having a valid passport or visa), and 212(a)(9)(B) (the three- and visas available, and registrants who are notified that their entries ten-year bars for individuals seeking admission after having been have been selected must act promptly to apply for an immigrant unlawfully present in the U.S. for a period of time). Many other visa. DV-2003 will end either when all visas available under the grounds of inadmissibility may be waived under the INA’s exist- program have been issued or on Sept. 30, 2003, whichever is ing nonimmigrant waivers. Applicants for V status are not sub- sooner. ject to the requirement of having an enforceable affidavit of sup- 66 Fed. Reg. 39,811–14 (DV-2003 rules); 66 Fed. Reg. 39,435–37 port (Form I-864) until the time that they apply for adjustment of (notice of new DV rules) (Aug. 1, 2001) . status. However, the INS may request that they submit a non- binding affidavit of support (Form I-134) to satisfy the public INS ISSUES INTERIM RULE TO IMPLEMENT V-VISA PROVISION OF LIFE charge ground of inadmissibility. ACT – The Immigration and Naturalization Service has issued an Although the three- and ten-year bars for unlawful presence interim rule to implement the provision of the Legal Immigration do not apply to V status applicants, these bars do apply to these Family Equity Act of 2000 (LIFE Act) that created a new V nonim- individuals when they later seek to adjust to LPR status. This migrant classification for certain spouses and children of lawful anomaly is probably an unintended result of the complicated pro- permanent residents. The U.S. State Dept. previously issued cess by which Congress enacted the LIFE Act. The original regulations for applicants for V visas outside the United States version of the LIFE Act contained special provisions for the ad- (see “State Dept. Informs, Issues Regulations Regarding New V justment of persons with V status that included an exemption and K Visas,” IMMIGRANTS’ RIGHTS UPDATE, May 10, 2001, p. from the unlawful presence bars. However, these provisions were 3); the INS regulations now establish a procedure for individuals deleted from the act by the LIFE Act Amendments, which instead residing in the country to apply for V status. created a temporary extension of the special adjustment provi- A spouse or child of an LPR is eligible to apply for V status if sions of INA section 245(i). Since any person with V status who he or she is the beneficiary of a family-based second preference is not eligible for regular adjustment would be eligible for adjust- (F2A) immigrant visa petition that was filed on or before Dec. 21, ment under the extended section 245(i), it is likely that Congress 2000, and that has been pending for at least three years. A child deleted the act’s special V status adjustment provision as unnec- who is eligible to immigrate as a derivative beneficiary of a peti- essary. tioned-for spouse or child who meets the above-described re- Thus, although persons with V status may travel and reenter quirements also is eligible for V status. the U.S. (if they obtain a V visa from the State Dept.), individuals In addition to meeting the above requirements, applicants must who have been unlawfully present in the U.S. may suffer serious either not yet have an immigrant visa number available to them (in consequences if they do so. Individuals who obtain V status in other words, not yet have a current priority date) or, if a visa the U.S. after having been unlawfully present in the country for number is available, they must have a pending application for more than six months, and who then depart from and return to the adjustment of status or for an immigrant visa. U.S., will be subject to the 3-year bar when they seek to adjust. Individuals in the U.S. may apply for V status by filing Form Individuals in this situation who have more than one year of I-539 (Application to Change Nonimmigrant Status) with the INS, unlawful presence will be subject to the 10-year bar. together with the filing fee (currently $120) or a request for a fee Individuals in immigration proceedings who are eligible for V waiver. Applicants between the ages of 14 and 79 must also status may request that the immigration judge (or the Board of submit the fingerprinting fee (currently $25), and they must com- Immigration Appeals, for cases on appeal) administratively close ply with the instructions specific to V status applicants on Supple- the case to allow them to apply for V status with the INS. The rule ment A to Form I-539. Applicants must submit with the applica- states that “if the alien appears eligible for V nonimmigrant sta- tion Form I-693 (Medical Examination of Aliens Seeking Adjust- tus, the immigration judge or the Board, whichever has jurisdic- ment of Status), completed by a civil surgeon. Applicants are not tion, shall administratively close the proceeding.” In cases where required to submit the vaccination supplement to Form I-693. the individual has a pending motion for reopening or reconsid- The applications should be submitted to: eration before the BIA, the rule states that the BIA should con- tinue the motion indefinitely. The supplemental information to U.S. Immigration and Naturalization Service the rule notes that, for individuals with final orders of removal, P.O. Box 7216 the statute does not have a provision allowing untimely motions Chicago, IL 60680-7216 to reopen to apply for V status, but individuals can request that the INS join in such a motion to reopen as a matter of discretion. Individuals outside the U.S. may apply to the U.S. State Dept. for The INS will grant V status to eligible individuals in two-year, a V visa. Although the regulation does not address this point, renewable increments, unless the applicant is a child who will according to the American Immigration Lawyers Association, the reach age twenty-one within two years, in which case V status INS has clarified in a liaison conference that derivative children will be granted only up until the day before the child’s twenty- may apply on the same Form I-539 as their parent, and only one first birthday. In cases where an individual applying for renewal fee should be submitted for that form. of V status has a current priority date but has not applied for In order to qualify for V status, individuals must be admis- adjustment of status, the INS will issue a one-time six-month ex- sible. Three grounds of inadmissibility do not apply to these tension of V status to allow the individual to apply for adjust- applicants: INA sections 212(a)(6)(A) (for being present in the ment. There are three V subcategories: V-1 (for the spouse of an OCTOBER 8, 2001 6 IMMIGRANTS’ RIGHTS UPDATE

LPR), V-2 (for a child of an LPR who is the beneficiary of a visa made additional categories of immigrants eligible for NACARA petition), and V-3 (for a derivative child of a V-1 or V-2). suspension or cancellation. V status terminates thirty days after an individual’s Form I-130 Section 1505(c) of the LIFE Act Amendments amended visa petition, application for adjustment of status, or application NACARA to provide that individuals who are otherwise eligible for an immigrant visa is denied or revoked (if the denial or revoca- for NACARA suspension or cancellation are not made ineligible tion of the visa petition is appealed, it is considered still pending by INA section 241(a)(5). This statute allows the Immigration until the denial or revocation is administratively final). If a previ- and Naturalization Service to reinstate a removal order to an immi- ously-approved I-130 petition is withdrawn, V status also termi- grant who has reentered the United States illegally after having nates (the supplementary information to the rule notes that the been removed or having departed voluntarily under an order of spouse or child of an abusive LPR who has withdrawn an I-130 removal. The statute further provides that an individual whose may be eligible to self-petition). Moreover, although the statute removal order is reinstated under this provision “is not eligible does not expressly address this issue, the regulations take the for and may not apply for any relief” under the INA. In addition position that V status terminates if the individual becomes no to making section 241(a)(5) inapplicable to applicants for longer eligible for an immigrant visa under the family 2A prefer- NACARA suspension and cancellation, the LIFE Act Amend- ence. Thus, a spouse who divorces, or a child who marries or ments also created a special motion to reopen for individuals who reaches age 21, loses the status. can benefit from this change. However, such motions must be If the petitioning LPR relative becomes a U.S. citizen, the filed within a time period set by the statute, and this period ends beneficiary(ies) no longer qualify under the 2A family preference, on Oct. 16, 2001. and the INS will not extend their V status when it expires. How- Under the interim rule, motions to reopen under section 1505(c) ever, individuals in this situation may apply for adjustment of of the LIFE Act Amendments must establish that the applicant: status, since they are immediate relatives of U.S. citizens. 1. is prima facie eligible for suspension of deportation or spe- The rule provides that individuals in V nonimmigrant status cial rule cancellation of removal under NACARA; are authorized to work incident to their status but that they must 2. was or would be ineligible for NACARA suspension or obtain an employment authorization document from the INS. They cancellation because of INA section 241(a)(5), but for the enact- may do so by submitting Form I-765 (Application for Employ- ment of the LIFE Act Amendments; ment Authorization) with the application fee (currently $100) or 3. has not been convicted of an aggravated felony; and with a request for a fee waiver to the same INS Chicago post 4. is within one of the eight categories specified in section office address provided above. 309(c)(5)(C)(i) of the Illegal Immigration Reform and Immigrant In order to travel abroad and then reenter the U.S., individuals Responsibility Act of 1996 (IIRIRA), as amended by NACARA, who were granted V status in the U.S. by the INS must apply for the LIFE Act Amendments, and the VTVPA. a V visa abroad. Such individuals may be granted a V nonimmi- The eight categories referenced in the fourth requirement listed grant visa even though they have applied for adjustment of sta- above include the six original eligibility categories for suspen- tus or an immigrant visa, since the V visa category allows “dual sion and special rule cancellation that were added to IIRIRA sec- intent”; whereas many nonimmigrant categories require the indi- tion 309(c)(5)(C)(i) by NACARA for: (1) Salvadorans who en- vidual to have residence abroad and are not available to persons tered the U.S. on or before Sept. 19, 1990, applied for temporary who intend to become LPRs, the V category does not. A V visa is protected status (TPS) or registered for benefits under American not required for individuals who travel to contiguous territories Baptist Churches v. Thornburgh, 760 F. Supp. 796 (N.D. Cal. 1991) or adjacent islands, have another valid visa, and are eligible for (ABC) on or before Oct. 31, 1991, and were not apprehended at automatic revalidation. Again, it must be noted that individuals time of entry after Dec. 19, 1990; (2) Guatemalans who entered the granted V status after having been unlawfully present in the U.S. U.S. on or before Oct. 1, 1990, registered for ABC benefits on or for more than six months may be barred from adjusting to LPR before Dec. 31, 1991, and were not apprehended at time of entry status if they travel outside the U.S. after Dec. 19, 1990; (3) Guatemalans or Salvadorans who applied The interim rule took effect on Sept. 7, 2001. The INS invites for asylum with the INS on or before Apr. 1, 1990; (4) nationals of public comments to the rule, which must be submitted on or be- the former Soviet Union, Russia, any republic of the former So- fore Nov. 6, 2001. 66 Fed. Reg. 46,697–705 (Sept. 7, 2001). viet Union, Latvia, Estonia, Lithuania, Poland, Czechoslovakia, Romania, Hungary, Bulgaria, Albania, East Germany, Yugoslavia, EOIR ISSUES INTERIM RULE FOR MOTIONS TO REOPEN NACARA or any state of the former Yugoslavia, who entered the U.S. on or SUSPENSION AND CANCELLATION CASES PURSUANT TO LIFE ACT before Dec. 31, 1990, and who applied for asylum on or before AMENDMENTS – The Executive Office for Immigration Review has Dec. 31, 1991; (5) the spouse or child of a person described in issued an interim rule governing motions to reopen deportation categories 1 through 4, where such person is prima facie eligible and removal proceedings to apply for suspension of deportation for and has applied for NACARA suspension or special rule can- or special rule cancellation of removal under the Nicaraguan Ad- cellation; and (6) an unmarried son or daughter of a person de- justment and Central American Relief Act of 1997 (NACARA), scribed in categories 1 through 4, where such person is prima for individuals who became eligible for this relief as a result of the facie eligible for and has applied for NACARA suspension or Legal Immigration Family Equity Act Amendments of 2000 (LIFE special rule cancellation. In addition, the unmarried son or daugh- Act Amendments). The deadline for such motions to reopen is ter, if age 21 or older, must have entered the U.S. on or before Oct. Oct. 16, 2001. The rule also implements provisions of the Victims 1, 1990. of Trafficking and Violence Prevention Act of 2000 (VTVPA) that In addition to the above six categories, the VTVPA added two IMMIGRANTS’ RIGHTS UPDATE 7 OCTOBER 8, 2001 new ones to section 309(c)(5)(C)(i): (7) a noncitizen who was terrorist grounds, persons who participated in persecution, and issued an Order to Show Cause or was in deportation proceed- persons previously granted suspension, cancellation, or a 212(c) ings before Apr. 1, 1997, and who applied for suspension of de- waiver), section 240B(d) or former section 242B(e)(2) (bars for portation as a battered alien under former INA section 244(a)(3); failing to depart the U.S. within a period specified for voluntary and (8) a noncitizen who (i) was the spouse or child of a person departure), and former section 242B(e)(1), (3), and (4) (bars to described in categories 1 through 4, either (A) at the time a deci- individuals who, after receiving oral and written notices, failed to sion is rendered to suspend deportation or cancel removal of that appear at removal or deportation hearings, or failed to appear for person, (B) at the time the person filed an application for suspen- deportation, or failed to appear for an asylum hearing). sion or cancellation, or (C) at the time the person registered for Individuals who do not have a final order do not need a mo- ABC, applied for TPS, or applied for asylum; and (ii) has been tion to reopen. The supplemental information notes that persons battered or subjected to extreme cruelty (or, the spouse has a who were previously deported or removed and who then returned child who has been battered or subjected to extreme cruelty), by to the U.S. illegally do not need a motion to reopen if the INS has the person described in categories 1 through 4. not reinstated their prior order. Rather, they may apply for sus- Only one special motion to reopen is available under section pension or special rule cancellation and are no longer subject to 1505(c) of the LIFE Act Amendments, and it must be filed with the reinstatement under INA section 241(a)(5). immigration court or the Board of Immigration Appeals, depend- The supplemental information also notes that a provision the ing on which forum last had jurisdiction over the case. The mo- VTVPA made certain categories of battered immigrants who are tion must establish that the applicant meets each of the rule’s not covered by this rule eligible to submit motions to reopen. eligibility requirements. It must also include a copy of Form I-881 The Dept. of Justice plans to issue regulations in the near future (Application for Suspension of Deportation or Special Rule Can- to implement this provision. cellation of Removal). In cases where applicants seek to reopen 66 Fed. Reg. 37,119–25 (July 23, 2001). based on category 7 (based on having applied for suspension of deportation under the pre-IIRIRA INA provision for abused BIA TERMINATES REMOVAL PROCEEDINGS FOR RESPONDENT WITH spouses and children), they must attach a copy of the previ- REDUCED SENTENCE – The Board of Immigration Appeals has ter- ously-filed Form EOIR-40 (Application for Suspension of Depor- minated removal proceedings for Min Song, an individual whose tation). Individuals applying to reopen based on categories 5 or one-year sentence for theft was decreased to 360 days. The 6 (being a spouse, child, or unmarried son or daughter of some- reduced sentence, the BIA ruled, effectively removed Song from one in categories 1 through 4) must include proof that their par- the reach of provisions in the Immigration and Nationality Act ent or spouse is prima facie eligible for and has applied for relating to the definition of “aggravated felony.” NACARA suspension or cancellation. The front page of the Song, a native Korean who had been admitted to the U.S. as a motion to reopen and any envelope containing the motion should lawful permanent resident in 1981, was convicted of theft and include the notation “Speical LIFE 1505(c) Motion.” There is no sentenced to a year in prison in the late 1980s. The Illegal Immi- filing fee for the motion to reopen. gration Reform and Immigrant Responsibility Act of 1996 amended The supplemental information to the rule explains that it does the INA’s definition of “aggravated felony” to include theft of- not extend the Sept. 11, 1998, deadline for motions to reopen fenses for which the term of imprisonment is at least one year. under NACARA section 203. That was the deadline by which Individuals found removable for aggravated felony convictions individuals with final orders of deportation or removal who be- are also rendered ineligible for any relief from removal. Thus, cause of NACARA became eligible for suspension or special rule based on his theft conviction, Song was placed in removal pro- cancellation had to file a motion to reopen (for more information ceedings and subsequently ordered removed by the immigration about this requirement, see “EOIR Issues Interim Rule for court. NACARA Motions to Reopen,” IMMIGRANTS’ RIGHTS UPDATE, On appeal, Song challenged the immigration court’s finding June 17, 1998, p. 3). The only persons who can move to reopen that his aggravated felony conviction made him ineligible for re- under the new interim rule are persons who have final orders of lief under the INA. Prior to filing his appellate brief, Song applied removal and deportation that have been reinstated or persons for and obtained an order vacating and revising his previous who have been newly issued final orders based on their having sentence nunc pro tunc to 360 days. Nunc pro tunc orders are returned to the U.S. after having been removed or having de- used by courts to revise prior judgments or orders in matters parted voluntarily under an order of removal that was subject to where the court originally had jurisdiction. The new order re- reinstatement. The supplemental information also states that, for places the original and is considered to have the same status, cases where the motion to reopen is denied, the INS “will evalu- notwithstanding the modification. ate the facts of the case” to determine whether reinstatement of In his appellate brief, Song presented new evidence demon- the prior order is required. strating that his criminal sentence had been reduced to 360 days. The supplemental information also notes that, although the As Song’s new conviction was for a term of less than one year, LIFE Act Amendments exempt NACARA suspension and can- the BIA determined that he could no longer be considered an cellation applicants from reinstatement of removal, the INS con- aggravated felon. In reaching its decision, the BIA relied on siders that they are still subject to other bars to eligibility—spe- Matter of Martin, 18 Int. Dec. 226 (1982), in which it ruled that cifically under INA section 240A(c) or former section 244(f) (bars where an individual is resentenced for a crime, the new sentence for crewmen, certain nonimmigrants subject to a two-year foreign determines whether or not he or she is deportable. residence requirement, individuals inadmissible or deportable on The BIA distinguished its ruling in Matter of Roldan-Santoyo, OCTOBER 8, 2001 8 IMMIGRANTS’ RIGHTS UPDATE

Int. Dec. 3377 (BIA 1999), which held that the IIRIRA provision • had an application for change of status, adjustment of status, defining “conviction” for immigration purposes precludes the asylum, voluntary departure, or relief from removal or change of BIA from giving effect to expungements or other post-conviction status pending or subject to further review or appeal; state rehabilitative orders. In this case the definition of “convic- • was a parolee or had a pending request for reparole; or tion” is not at issue; the sentence reduction did not eliminate the • was the spouse or child of an individual currently eligible to fact that there was a conviction, but rather changed the term of register for TPS. imprisonment such that the conviction falls outside the defini- Late initial registration applicants must register no later than tion of an aggravated felony. 60 days from the expiration or termination of the above-listed Matter of Song, 23 I. & N. Dec. 173 (BIA 2001). conditions. Last, they must follow the same instructions as per- sons applying for extensions, except late initial registrants must AG EXTENDS TPS DESIGNATION FOR NATIONALS OF BURUNDI, SIERRA also submit the $50 fee with the Form I-821 as well as a $25 finger- LEONE, SUDAN – The attorney general has issued separate no- printing fee. tices extending the designations of Burundi, Sierra Leone, and The AG estimates that there are no more than 1,000 nationals Sudan as countries whose nationals and residents currently in of Burundi, 6,102 of Sierra Leone, and 1,903 of Sudan who have the United States are eligible for temporary protected status (TPS). been granted TPS and are eligible for reregistration. At least 60 The attorney general’s action marks the fifth consecutive year in days prior to Nov. 2, 2002, the AG will review the three countries’ which the status has been extended for nationals of those three TPS designations to determine whether conditions for designa- countries. tion continue to be met. TPS is granted to persons from countries that are designated 66 Fed. Reg. 46,027–29 (Burundi), 46,029–31 (Sierra Leone), by the attorney general as experiencing ongoing armed conflict, and 46,031–33 (Sudan) (Nov. 9, 2000). environmental disaster, or certain other conditions that prevent those persons from returning. TPS allows individuals to remain PRESIDENT ORDERS DED FOR LIBERIANS EXTENDED ANOTHER YEAR – and work in the U.S. during the period of TPS designation. Former President George W. Bush has directed the attorney general to Attorney General Janet Reno, on Nov. 4, 1997, originally desig- extend deferred enforced departure (DED) for Liberians currently nated TPS for the three nations because of ongoing armed con- in the U.S. and to make the relief available for another one-year flicts. In consultation with the U.S. State Dept., her successor period beginning Sept. 29, 2001. From 1991 through 1999, Liberia has now determined that extensions for another year are war- was designated for temporary protected status (TPS). In 1999, ranted because of the persistence of such conflicts. former President Bill Clinton determined that conditions in Liberia The extensions for all three countries will take effect on Nov. 2, had improved to an extent warranting termination of TPS. How- 2001, and will remain in effect until Nov. 2, 2002. To obtain TPS ever, he also found that serious political and economic problems under the extensions, nationals of these countries (and individu- warranted extending DED to Liberians, and the status was ex- als of no nationality who last habitually resided in them) must tended again in 2000. This order extends DED designation for apply for the extension during the reregistration period that be- Liberians, granting them permission to remain in the U.S. as well gan on Aug. 31, 2001, and ends Nov. 29, 2001. Persons previ- as employment authorization during the DED period. In order to ously granted TPS under the Burundi, Sierra Leone, or Sudan qualify for DED under the extension, eligible Liberian nationals program need only file Form I-821 without the fee and also submit must have been present in the U.S. as of Sept. 29, 2001. Form I-765, Application for Employment Authorization. Those However, the president’s directive excludes from DED eligibil- who seek work authorization under the extensions must submit ity any of the following categories of Liberian nationals: the $100 fee with the I-765 form. Applicants who do not seek • those who are ineligible for temporary protected status for work authorization must still file the I-765 but need not pay the reasons outlined in Immigration and Nationality Act section fee. In addition, applicants for the extensions of TPS must in- 244(c)(2)(B); clude two 1½" x 1½" identification photographs. Child beneficia- • those whose removal the AG determines is in the U.S.’s inter- ries of TPS who have reached 14 years of age but were not previ- est; ously fingerprinted must submit the $25 fingerprinting fee. • those whose presence or activities in the U.S. the secretary of Under these extensions, late initial registration is also pos- state has reasonable grounds for believing would have adverse sible for individuals who did not register during the initial periods consequences for U.S. foreign policy; of TPS for the three countries that ended on Nov. 3, 1998. To • those who have returned or do return voluntarily to Liberia or register under this provision, a person must their country of last habitual residence outside the U.S; • be able to demonstrate “continuous physical presence” and • those who were deported, excluded, or removed prior to the “continuous residence” in the U.S. since Nov. 9, 1999, and date of the presidential memorandum; and • be admissible as an immigrant, except as otherwise provided • those who are subject to extradition. under Immigration and Nationality Act section 244(c)(2)(A), and not be ineligible under section 244(c)(2)(B). An individual who applies for late initial registration must also be able to show that during the registration period beginning Litigation Nov. 9, 1999, and ending Nov. 2, 2000, he or she 9TH CIRCUIT UPHOLDS BIA RULING THAT EXPUNGEMENTS DO NOT ELIMI- • was a nonimmigrant or had been granted voluntary departure NATE THE IMMIGRATION EFFECTS OF CONVICTIONS –The Ninth Cir- status or any relief from removal; cuit Court of Appeals has upheld a decision of the Board of IMMIGRANTS’ RIGHTS UPDATE 9 OCTOBER 8, 2001

Immigration Appeals refusing to recognize a state law with probation or other conditions) never to be considered con- expungement of a criminal conviction as having an effect on im- victions. Murillo-Espinoza argued that, by deleting the third migration proceedings. The decision came on a petition for re- prong of the Ozkok definition, Congress simply intended to en- view filed by a lawful permanent resident with a single conviction sure that all deferred adjudications are treated as convictions, for theft. The decision means that, in the Ninth Circuit, the only unless and until the conviction is subsequently vacated. state expungements recognized for immigration purposes are The Ninth Circuit noted that the plain language of the statute those for first-time drug offenses where the defendant would “could well be interpreted” in this manner. However, the court have been eligible for an expungement under the Federal First found that the BIA’s contrary interpretation in Roldan was a Offender Act (FFOA) had he or she been prosecuted federally. permissible construction of the statute and concluded that under The petitioner in this case, a Mr. Murillo-Espinoza, was admit- Chevron U.S.A., Inc. v. Natural Res. Def. Council, the court was ted to the U.S. as an LPR in 1961. In 1995 he was convicted for required to defer to the BIA on this issue. The court ruled that, theft in Arizona and sentenced to three years’ probation and 6 despite the expungement, Murillo-Espinoza was deportable based months’ incarceration in a county jail. He subsequently violated on the aggravated felony and that therefore the court had no probation and was sentenced to 18 months of imprisonment. jurisdiction over the petition for review. The petitioner has filed a Because Murillo-Espinoza’s probation violation amounted to a petition for rehearing in the case. theft violation for which he received a sentence of over a year, the As noted above, the decision does not apply to certain state Immigration and Naturalization Service charged him with being expungements of first-time drug offenses. In Lujan-Armendariz, removable for having an aggravated felony conviction. The im- the appeals court overturned the specific holding of Roldan. migration judge ordered him removed, and Murillo-Espinoza ap- Ruling that the IIRIRA did not repeal the FFOA, the court cited pealed. equal protection grounds in holding that the BIA must recognize While his case was on appeal, Murillo-Espinoza obtained a expungements granted to drug offenders under state laws, where state court order vacating the judgment of guilt and dismissing the defendants could have been prosecuted under federal law the theft charge. He then moved to terminate removal proceed- and qualified for an expungement under the FFOA. ings, and the BIA remanded the case to the IJ to determine the Murillo-Espinoza v. INS, 261 F.3d 771 (9th Cir. Aug. 14, 2001). effect of the expungement. Subsequently, the BIA ruled in Mat- ter of Roldan-Santoyo, Int. Dec. 3377 (BIA 1999), vacated sub 9TH CIRCUIT REJECTS BIA’S REQUIREMENT THAT APPLICANTS FOR nom. Lujan-Armendariz v. INS, 222 F.3d 728 (9th Cir. 2000), that HUMANITARIAN EXCEPTION IN ASYLUM CASES MUST SHOW ONGOING the definition of “conviction” enacted as part of the Illegal Immi- DISABILITY – A divided panel of the Ninth Circuit Court of Ap- gration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) peals has held that the Board of Immigration Appeals erred in precludes the BIA from giving immigration effect to expungements requiring an asylum applicant to show that he has an ongoing or any other state procedures that erase a defendant’s record of disability in order to qualify for the humanitarian exception ar- guilt for rehabilitative purposes. In this case the IJ, and subse- ticulated in Matter of Chen. In reversing the BIA’s denial of quently the BIA, found that under Roldan Murillo-Espinoza re- asylum, the court ruled that the BIA impermissibly departed from mained convicted of an aggravated felony for immigration pur- the plain language and clear intent of the regulation codifying the poses, notwithstanding the expungement. exception, as well as the agency’s own case law and Ninth Circuit On appeal to the Ninth Circuit, Murillo-Espinoza argued that precedent. INA section 101(a)(48)(A), which contains the statute’s defini- The appeal arises from the asylum application of Jaswant Lal tion of “conviction,” concerns only the requirements that define and his family. Lal is an Indo-Fijian who was a prominent member circumstances in which an individual is considered to have been of the Fijian Labor Party, a nonviolent organization comprised of convicted in the first place. He argued that the section does not Hindu Fijians of Indian descent. Lal served as the branch secre- concern the effect of any post-conviction relief. With one modi- tary for the party and distributed posters, coordinated events in fication, the statute codifies the definition of “conviction” that his region, and, on election day, provided transportation services. the BIA set out in Matter of Ozkok,19 I. & N. Dec. 546 (BIA 1988). In 1987 Lal’s party won a majority of seats in the Fijian Parliament. That definition was intended to serve as a uniform rule for deter- In 1988, however, the Fijian military staged a coup and subse- mining when the myriad different procedures used by different quently persecuted Labor Party members. states should be considered to result in a conviction for immigra- After the coup, soldiers dragged Lal from his home at gun- tion purposes. The Ozkok definition consisted of a three-pronged point, detained him for three days, and beat and tortured him. Lal test, and section 101(a)(48)(A) adopts verbatim the first two parts was forced to endure unspeakable acts of torture: he was stripped of this test. They provide that “conviction” means “a formal of his clothes, urine was forced into his mouth, he was cut with judgment of guilt of the alien entered by a court or, if adjudication knives and singed with burning cigarettes. He was also deprived of guilt has been withheld, where (i) a judge or jury has found the of food and water. When he asked for a drink, officials gave him alien guilty or the alien has entered a plea of guilty or nolo con- meat that he could not eat because of his religious beliefs. After tendere or has admitted sufficient facts to warrant a finding of Lal was released, soldiers returned to the Lals’ home and, in the guilt, and (ii) the judge had ordered some form of punishment, presence of Lal, sexually assaulted his wife. During the next four penalty or restraint on the alien’s liberty to be imposed.” The years, the government detained Lal at least three times. His house third Ozkok prong, which Congress did not include in the stat- was set ablaze twice and placed under constant surveillance. The ute, allowed certain “deferred adjudications” (procedures whereby Lals’ son was mocked and taunted and, because of his race and a state court suspends criminal proceedings pending compliance religion, was denied placement in a well-known school. On three OCTOBER 8, 2001 10 IMMIGRANTS’ RIGHTS UPDATE occasions, the Lals were intercepted in their attempts to flee Fiji. or physical disability may be a factor in determining the severity The family ultimately escaped and applied for asylum in the U.S. of an applicant’s past persecution, the court held, neither past Under the regulations governing asylum, once the applicant BIA cases nor Ninth Circuit case law has treated lasting disability establishes past persecution (on account of race, religion, na- as a requirement for granting the exception. tionality, membership in a particular social group, or political opin- The court was careful to distinguish the Lal case from INS v. ion), he or she is accorded a rebuttable presumption of a well- Aguirre-Aguirre, 526 U.S. 415 (1999). In Aguirre-Aguirre, the founded fear of future persecution. The Immigration and Natu- Supreme Court admonished the Ninth Circuit for substituting its ralization Service may rebut the presumption by showing, through own interpretation of a statute for the BIA’s. However, according a preponderance of the evidence, that conditions in the applicant’s to the lower court, the Supreme Court did not then proceed to country of origin “have changed to such an extent that the appli- blindly defer to the BIA. Rather, the Court carefully examined the cant no longer has a well-founded fear of being persecuted if he statute in question and decided whether the BIA’s approach was or she were to return.” consistent with the plain language of the statute. Having fol- The immigration judge found Lal credible and ruled that he lowed the approach laid out by the High Court, the Ninth Circuit had suffered past persecution. Finding that no evidence was rejected the BIA’s interpretation of the humanitarian exception presented to rebut Lal’s fear of future persecution, the IJ granted rule in Lal. asylum. The government appealed the grant to the BIA. The Ninth Circuit next addressed the BIA’s decision on coun- Relying solely on a State Dept. report on country conditions try conditions. The BIA had based its reversal of the IJ’s grant of in Fiji, the BIA ruled that conditions there had sufficiently changed asylum on a State Dept. report indicating that widespread human such that Lal no longer had a well-founded fear of future persecu- rights abuses in Fiji had diminished. The Ninth Circuit held that tion. The BIA also held that, because Lal did not suffer from an assessing whether or not a particular applicant’s fear is rebutted ongoing disability, he did not qualify for the Matter of Chen by changed country conditions requires “individualized analy- humanitarian exception to the rule regarding changed country sis” focusing on “the specific harm suffered and the relationship conditions. of the particular information contained in the relevant country Matter of Chen is a BIA decision involving a Chinese man reports.” As the BIA failed to undertake such an analysis, the who suffered extreme persecution during the Cultural Revolution court rejected the BIA’s determination as insufficient. Accord- in China. Although Chen no longer feared persecution from the ingly, it reversed the BIA’s decision on asylum and found Lal Chinese government, the BIA carved out an exception based on eligible for withholding of deportation. general humanitarian principles and waived the requirement that Lal v. INS, 255 F.3d 998 (9th Cir. July 3, 2001). an individual who has suffered past persecution must also dem- onstrate a well-founded fear of future persecution. That holding 9TH CIRCUIT DISMISSES HABEAS PETITION CHALLENGING EXPEDITED was later codified in asylum regulations. REMOVAL – In an important case of first impression, the Ninth In its analysis, the Ninth Circuit acknowledged that it must Circuit Court of Appeals held that it lacks jurisdiction to review defer to the BIA’s interpretation of its own rules. However, it also the merits of an expedited removal order and affirmed a federal noted that such deference is due only where the agency’s read- district court’s dismissal of a Chinese businesswoman’s habeas ing is consistent with the rule’s plain language and intent and has corpus petition. practical consequences that are neither arbitrary nor unreason- Using a B1 (business) visa that she had previously used to able. Because its requirement of an ongoing disability treats enter the U.S., Meng Li attempted to travel to New York in June torture victims differently based on an arbitrary distinction 1997. At an interim stop in Anchorage, Alaska, the Immigration (whether “one has the good fortune to recover from [one’s] inju- and Naturalization Service detained Li after it determined that she ries” or not), the BIA’s approach is not due deference, the court had attempted to enter the U.S. through fraudulent means. The held. Quoting the regulation itself, the court stated that a person determination subjected Li to expedited removal, and she was who has been persecuted and seeks asylum qualifies for the hu- consequently ordered removed and barred from entering the coun- manitarian exception if he or she has “compelling reasons for try for five years. Alleging that her entry was lawful, Li filed a being unwilling to return to his or her country . . . arising out of habeas corpus petition in federal district court. She sought an the severity of the past persecution.” According to the BIA, the order admitting her into the U.S. and voiding the five-year bar. Ninth Circuit stated, Lal’s experience of persecution was not suf- Ruling that it lacked jurisdiction to review expedited removal or- ficiently severe to qualify him for the exception “because he does ders, the district court dismissed Li’s habeas petition. Li then not, for example, have a permanent limp or suffer a loss of hear- filed an appeal with the Ninth Circuit. ing.” Such an interpretation does not comport with the regula- Created by the Illegal Immigration Reform and Immigrant Re- tions, the court ruled. sponsibility Act of 1996 (IIRIRA), expedited removal applies to The court buttressed its conclusion by relying on Matter of individuals who misrepresent themselves or present fraudulent Chen. According to the court, cases resulting in regulations documents in attempting to enter the U.S. Under expedited re- codifying a rule created by their holdings may be referred to for moval, the INS may issue nonreviewable orders of removal against insight into the regulations’ intent and history. The Ninth Circuit such persons, who are then barred from returning to the U.S. for noted that Chen never refers to permanent disability as a require- five years. ment for the humanitarian exception. The court also examined As the Ninth Circuit noted, the IIRIRA provides for very lim- previous BIA cases as well as Ninth Circuit precedent that had ited judicial review of expedited removal orders. Habeas corpus applied the Matter of Chen exception. Although ongoing mental review is restricted to questions about (1) whether the petitioner IMMIGRANTS’ RIGHTS UPDATE 11 OCTOBER 8, 2001 is an alien, (2) whether the petitioner was removed under the statu- injured and killed in the Sept. 11, 2001, terrorist attacks and that tory provision (8 U.S.C. § 1225(b)(1)) authorizing expedited re- people belonging to those groups are also involved in many of moval, and (3) whether the petitioner can prove that he or she is the rescue and relief operations. a lawful resident or has been admitted as a refugee or granted In a similar call for tolerance, Cari M. Dominguez, chair of the asylum. The Ninth Circuit found that such issues were irrelevant U.S. Equal Employment Opportunity Commission (EEOC), issued to Li, who only wished to challenge the INS’s determination that a statement on Sept. 14, 2001, urging “all employers and employ- she had attempted to enter the U.S. fraudulently, triggering the ees across the country to promote tolerance and guard against applicability of section 1225(b)(1). However, the court noted, the unlawful workplace discrimination based on national origin or IIRIRA permits judicial review only to examine whether 1225(b)(1) religion.” She asked employers to be vigilant regarding incidents was invoked at all, and not whether it was properly invoked. of discrimination against or of harassment or intimidation of Arab Therefore, the court held, its inquiry is limited to whether a re- American or Muslim employees. Specifically, Dominguez urged moval order “in fact was issued and whether it relates to the employers to remind their employees about policies against ha- petitioner.” Because Li contested neither issue, the district court rassment based on religion, ethnicity, or national origin; to inform acted properly in dismissing the habeas petition for failing to them of the procedures they have in place for addressing work- raise any issue within its authority to review, the appeals court place discrimination and harassment; and to provide training and ruled. counseling as appropriate. In reaching its ruling, the Ninth Circuit noted that Congress The EEOC’s Dominguez also encouraged employees to report clearly intended to limit habeas authority for judicial review of any such employment discrimination and reminded them that Title expedited removal orders. In doing so, it distinguished the case VII of the Civil Rights Act of 1964 (Title VII) protects workers before it from Magana Pizano v. INS, 200 F.3d 603 (9th Cir. 1999). from employment discrimination based on religion, ethnicity, birth- Unlike Li’s case, Magana Pizano involved the challenge of an place, culture, or linguistic characteristics. It also protects work- ordinary removal order. There, the Ninth Circuit held that be- ers from being discriminated against because they are married to cause Congress had not explicitly restricted it, the more general or associate with anyone of a given national origin or ethnic or habeas review under 28 U.S.C. 2241 remains available. religious group. In addition, Title VII prohibits workplace dis- The Ninth Circuit also dismissed Li’s due process claims. Cit- crimination against individuals because they have certain physi- ing the Supreme Court’s holding in U.S. ex rel. Knauff v. cal, linguistic, or cultural traits closely associated with a particu- Shaughnessy, 338 U.S. 537, 542 (1950), the court held that since Li lar national origin group—for example, a traditional Arab style of is a nonresident alien who had not secured legal admission to the dress. Finally, it is also unlawful employment discrimination to U.S., she has no constitutional basis to challenge her removal. treat an individual differently because of the perception or belief Judge Hawkins issued a lengthy dissent, in which he ques- that the person is a member of a particular national origin group, tioned his colleagues’ reading of the IIRIRA provisions limiting based on the person’s speech, mannerisms, or appearance. judicial review of expedited removal. If the majority’s reading is The EEOC has jurisdiction over employment discrimination correct, Hawkins wrote, then it “means that [the] INS can issue an cases involving employers that have at least 15 employees. Indi- expedited removal order for any alien seeking to enter the U.S. viduals who work for smaller employers that have between 4 and (other than a permanent resident, refugee, or asylum-seeker) for 14 employees may also file employment discrimination cases un- any reason, including clearly improper grounds such as racial or der the antidiscrimination provisions of the Immigration Reform ethnic bias, and the courts cannot review the legal basis of that and Control Act of 1986. Such complaints may be filed with the order.” On the contrary, he asserted, a careful reading of the Office of Special Counsel for Immigration Related Unfair Employ- statutory provisions regarding review “grounded in the overall ment Practices (OSC). For more information about the EEOC, expedited removal provisions of the IIRIRA,” in concert with Ninth visit their web site at www.eeeoc.gov. For more information about Circuit precedent interpreting similar review provisions, leads to the OSC, visit their web site at www.usdoj.gov/crt/osc/, or call the opposite conclusion. Hawkins also noted that local INS the OSC’s worker hotline at 1-800-255-7688. agents’ errors likely led to the application of expedited removal against Li, and “not any misconduct by [her].” NLRB CERTIFIES UNION DESPITE IMMIGRATION-RELATED OBJECTIONS Meng Li v. Eddy, 259 F.3d 1132 (9th Cir. Aug. 8, 2001). BY EMPLOYER – In certifying Local 1027 of the Chicago and North- east Illinois District Council of Carpenters as the collective bar- gaining representative of workers at Superior Truss and Panel, Inc., the National Labor Relations Board (NLRB) adopted the Employment Issues hearing officer’s recommendations rejecting three objections FEDERAL OFFICIALS DENOUNCE DISCRIMINATION FOLLOWING TERROR- raised by the employer against the election after a majority of the IST ATTACKS – On behalf of Attorney General John Ashcroft, As- workers voted for the union on Feb. 21, 2001. The newly union- sistant Attorney General for Civil Rights Ralph F. Boyd Jr. has ized workers include a number of immigrants. issued a statement condemning any acts or threats of violence or The employer had alleged that some of the workers who voted discrimination against Arab or Muslim Americans or Americans in the election were undocumented, pointing as evidence to “no- of South Asian descent, stating that such acts “are not just wrong match letters” it had received from the Social Security Adminis- and un-American, but also are unlawful and will be treated as tration (SSA), each informing the employer that the Social Secu- such.” His Sept. 13, 2001, statement reminded everyone that rity numbers submitted by the workers named in the letter did not Arab, Muslim, and South Asian Americans were among those match valid SSA accounts. However, the NLRB noted that the OCTOBER 8, 2001 12 IMMIGRANTS’ RIGHTS UPDATE employer had received several no-match letters starting as early broad discretion in a regular and proper fashion unless a defen- as May 1999, yet this was the first time the employer had raised dant presents “clear evidence to the contrary” that the prosecu- any questions regarding workers’ immigration status. Moreover, tor has made his or her decision based on “an unjustifiable stan- the employer had submitted the workers’ names to the NLRB on dard such as race, religion, or other arbitrary classification” in its list of all its employees who were eligible to vote in the union violation of the defendant’s due process rights. The court relied election. Finding that the employer had not submitted any evi- on the two-prong test set forth in Armstrong that requires the dence to substantiate that any of the workers were indeed un- defendant to show (1) that the federal prosecutory policy had a documented, the NLRB rejected the employer’s argument. discriminatory effect and (2) that it was motivated by a discrimi- The employer also argued that the union had unfairly inter- natory purpose. The court held that “discriminatory effect” can fered with the election by having an attorney present during one be established by showing that “similarly situated” individuals of the union-sponsored campaign meetings. At this meeting, the of a different race or national origin were not prosecuted although attorney apparently explained to workers who were complaining they engaged in the same conduct and committed the same basic of national origin discrimination by a supervisor that they should crime. “Discriminatory purpose,” on the other hand, can be es- document these problems in case they decided to file a lawsuit tablished through a practical inquiry as to whether the prosecu- after the election. The employer also took issue with a letter the tor made the decision to prosecute in part “because of,” not “in attorney wrote to the employer after the election objecting to the spite of,” the adverse effects it would have on a specific group of employer’s threats to discharge workers about whom the em- people. ployer had received a no-match letter from the SSA in June 2000. Finally, the court noted that the Sixth Circuit had adopted a The NLRB held that there was no evidence that the attorney three-prong test to analyze whether a defendant has been uncon- promised to or actually filed a lawsuit before the election. On the stitutionally singled out for prosecution. Specifically, a defen- other hand, the attorney’s letter to the employer clearly demon- dant is selectively prosecuted when (1) he is singled out for pros- strated the union’s intent to file a charge of an unfair labor prac- ecution as a person belonging to an identifiable group, even tice because the employer threatened to fire those workers who though similarly situated individuals have not been prosecuted; appeared on an old no-match letter, and the NLRB stated that (2) the prosecution was started with a discriminatory purpose; filing such charges against an employer during an organizing and (3) the prosecution of the defendant will have a discrimina- campaign is permissible because it is necessary to preserve the tory effect on the group he belongs to. electoral process. In holding that the government had singled out Correa-Gomez Finally, the NLRB rejected the employer’s third argument, in for prosecution, the court found the evidence established that which he challenged the election ballots because they were only between 1996 to 2000, the INS had conducted 17 raids against in English, though there were Spanish translations of the notice employers in the Eastern District of Kentucky that resulted in the of election with sample ballots in Spanish. The NLRB held that apprehension of 218 undocumented workers and six fines, six translating the notice was sufficient and that the translation only warnings, and no criminal prosecutions of employers. Of the 218 had to be understandable, not flawless, to pass muster. workers detained, 199 had presented false documents and the Superior Truss & Panel, Inc. and Chicago & Northeast remainder had no paperwork at all. Over 82 percent of the owners Illinois Dist. Council of Carpenters, AFL-CIO, Local Union whose businesses were raided were non-Latino, and none of them 1027, Case 13-RC-20518, 334 NLRB No. 115, was criminally prosecuted, whereas Correa-Gomez was pros- 2001 NLRB LEXIS 559, Aug. 2, 2001. ecuted. The court further noted that in order to convict an indi- vidual of a crime under section 1324(a), the government has to FEDERAL COURT FINDS INS SELECTIVELY PROSECUTED LATINO EM- prove beyond a reasonable doubt that the defendant acted with PLOYER – A federal court in the Eastern District of Kentucky has the required mental state, and it noted that employers can assert dismissed with prejudice the criminal indictment against the Latino the affirmative defense that they complied with the employment owner of a chain of restaurants who the government accused of eligibility verification process by asking workers to present their smuggling and harboring undocumented workers in violation of documents and completing the required I-9 form for each worker. 8 U.S.C. section 1324(a)(1)(A). The Immigration and Naturaliza- The completion of the form creates a rebuttable presumption that tion Service brought criminal charges against Mr. Correa-Gomez the employer acted in good faith when it accepted documents after it raided two of his restaurants, where the INS detained that appeared to be genuine on their face. While the INS gave all fourteen undocumented workers, nine of whom had presented other business owners the benefit of that presumption, the court false documents at the time they were hired. The others claimed held that the INS had not provided the defendant with the same someone other than the defendant had hired them or that they benefit. lied to the defendant about their immigration status. Correa-Gomez The court therefore found that Correa-Gomez had established moved to dismiss the indictment, alleging that the government that the prosecution’s decision to bring charges against him but had engaged in selective prosecution against him in violation of not against others who were similarly situated was discrimina- his due process rights because it brought criminal charges against tory. Moreover, the court found that while prosecuting this de- him while not against similarly situated non-Latino employers. fendant would have a deterrent effect on other business owners, In deciding whether Correa-Gomez had been selectively pros- it would have a chilling impact on Latino business owners. The ecuted, the court followed the guidance in United States v. court stated that the prosecution of Correa-Gomez was particu- Armstrong, 517 U.S. 456, 465 (1966), in which the Supreme Court larly suspect, since the INS was not willing to proceed against held that there is a presumption that prosecutors carry out their him administratively. The court said it was convinced that Correa- IMMIGRANTS’ RIGHTS UPDATE 13 OCTOBER 8, 2001

Gomez should never have been prosecuted. in retaliation for engaging in union organizing activities. United States of America v. Correa-Gomez, No. 5:01-CR-32, The union filed a charge with the National Labor Relations 2001 U.S. Dist. LEXIS 13757 (E.D. Ky. Aug. 31, 2001) . Board (NLRB), which found the employer had violated the Na- tional Labor Relations Act of 1935 (NLRA). However, during CALIFORNIA AND CONNECTICUT APPROVE LAWS BENEFITTING IMMI- attempts to resolve a dispute as to the amount of back pay due GRANT WORKERS – In a victory for limited English–proficient (LEP) the illegally fired workers, the employer learned about the un- workers in California and Connecticut, two bills have recently documented immigrant and his improper use of a birth certificate been signed into law that should advance the employment rights to obtain his job. The employer contested that worker’s eligibil- of workers in these states as well as serve as model legislation for ity for back pay. The case made its way to the D.C. Circuit Court other states across the country. of Appeals, which ruled that, despite his undocumented status, On July 6, 2001, Governor John G. Rowland of Connecticut the worker was entitled to back pay up to the date the employer signed into law House Bill No. 6657, designed to provide informa- learned of his immigration status and false use of documents (see tion to LEP workers about their rights under Connecticut wage “D.C. Circuit Affirms the Right of Undocumented Workers to and hour and unemployment laws. “An Act Prohibiting Employ- Receive Back Pay,” IMMIGRANTS’ RIGHTS UPDATE, Feb. 28, 2001, ment Exploitation of Immigrant Labor,” enacted as Public Act No. p. 12). The employer appealed that ruling, and now the Supreme 01-147, repeals Section 31-4 of the Connecticut General Statutes, Court will decide whether the NLRB’s award of back pay was which provided that the state labor commissioner could appoint appropriate. The Court granted the certiorari petition on Sept. 25, special agents on a case-by-case basis to inform non–English- 2001. Hoffman Plastic Compounds, Inc. v. NLRB, speaking workers, in those workers’ own languages, of their rights. No. 00-1595, 2001 U.S. LEXIS 5348 (Sept. 25, 2001). The new law strengthens that provision by specifically requiring the labor commissioner to produce and distribute printed materi- WORKERS’ RIGHTS TRAININGS SLATED FOR SEATTLE & NEW als describing the rights of immigrant and LEP workers in order to YORK – In collaboration with other community-based organiza- help such workers protect themselves from unfair exploitation by tions and unions, NILC will be providing two all-day Immigrant employers who, for example, might withhold wages owed the Workers’ Rights trainings for advocates this fall. One will be in workers or commit other similar violations. Public Act No. 01-147 Seattle on Mon., Oct. 29, 2001, and the other in New York City states that the labor commissioner’s educational materials must on Fri., Nov. 30, 2001. For more information, contact Marielena be printed in Spanish, French, and any other language deter- Hincapié at 510-663-8282, ext. 305, or via email at [email protected]. mined to be spoken by a primary group of immigrant workers in Connecticut. The funds for these materials will come from a civil penalty of $300 per violation levied against employers who vio- Immigrants & Welfare Update late this law. Connecticut’s new law went into effect on Oct. 1, CONGRESS CONSIDERS EXPANDING NUTRITIONAL ASSISTANCE FOR 2001. IMMIGRANTS – As Congress works on a $50-90 billion “stimulus The California bill, which Governor Gray Davis signed into law package” designed to address the economic downturn aggra- on Sept. 12, 2001, provides LEP workers with limited protection vated by the September 11 attacks, it is also considering legisla- against “English-only” rules—i.e., rules that require workers to tion addressing nutrition assistance programs. One proposal, speak only English while on the job or in the workplace. Assem- which is related to the stimulus package, would address the rap- bly Bill No. 800 amends Section 12951 of the California Govern- idly developing shortfall in the Special Supplemental Nutrition ment Code, relating to employment discrimination, by providing Program for Women, Infants, and Children (WIC) that threatens that it is an unlawful employment practice for employers to insti- to prevent hundreds of thousands of women and children from tute an English-only rule unless (1) it is justified by a business obtaining basic nutrition assistance. The second proposal would necessity and (2) the employer notifies its workers of when and restore food stamps to lawfully present immigrants. under which circumstances the English-only rule applies and what WIC Shortfall. The WIC program provides nutritious foods, nu- the consequences for violating the rule are. “Business neces- trition education, and access to health care for low-income preg- sity” is defined as “an overriding legitimate business purpose” nant women, new mothers, infants, and children under five years that is necessary for the safe and efficient operation of the busi- old who are at nutritional risk. WIC vouchers can be used only to ness. Such a necessity exists only when there is no lesser dis- purchase particular foods specifically tailored to the special di- criminatory alternative to the English-only restriction that would etary needs of program participants, such as milk, infant formula, accomplish the same business purpose. The new law also sets juice, cereal, cheese, and eggs. WIC is one of the few federal forth a statement of legislative intent that this new law incorpo- safety net programs available to individuals without regard to rates the California Constitution’s protections against discrimi- immigration status. nation based on national or ethnic origin, while also acknowledg- WIC is highly sensitive to the economy; when the economy ing that, under California’s constitution, English is the state’s experiences a downturn, applications for WIC go up. But unlike official language. some other safety net programs, WIC is not an entitlement. Con- gress appropriates money based on its estimate of the likely need, SUPREME COURT TO HEAR BACK PAY CASE INVOLVING UNDOCUMENTED and if the money runs out, otherwise eligible women and children WORKER – The U.S. Supreme Court has granted an employer’s are turned away. This year, the Bush Administration’s budget petition for writ of certiorari in a labor case involving workers, request was developed in the spring, and subsequent congres- including an undocumented immigrant, who had been discharged sional action has not accounted for the changed economic cir- OCTOBER 8, 2001 14 IMMIGRANTS’ RIGHTS UPDATE cumstances. Even before the September 11th events, WIC appli- The Dept. of Health extended the program in response to the cations had increased markedly above the initial budget projec- efforts of advocates and the New York Court of Appeals decision tions. The attacks and subsequent economic shock have exacer- in Aliessa v Novello, 96 N.Y. 2d 418 (2001), in which New York’s bated the problem. Under the administration’s budget, states highest court decided that the state’s failure to provide health next year will be forced to turn away at least 350,000 otherwise coverage to all legal immigrants violated the equal protection eligible women and children, according to the Center on Budget clauses of the federal and state constitutions (see “N.Y. Law and Policy Priorities (CBPP). The CBPP reports that at least $250 Restricting Immigrants’ Eligibility for State Medical Aid million in additional funds will be needed in fiscal 2002. Found Unconstitutional,” IMMIGRANTS’ RIGHTS UPDATE, June To date, the House has passed an agriculture appropriations 29, 2001, p. 15). bill that provides the same amount of funding requested by the Health coverage for immigrants in New York City has been administration, while the Senate is scheduled to vote on its ver- further extended in the wake of the September 11th disaster. The sion later this month. The Senate Appropriations Committee bill Dept. of Health and New York City Medicaid offices have estab- includes about $110 million more than the president requested. lished a Disaster Relief Medicaid program, which provides four However, even if the Senate bill passes and prevails in confer- months of Medicaid to income-eligible individuals, regardless of ence later this month, there will be a $140 million shortfall. Advo- their immigration status. Income eligibility for the program is cates are now working hard to ensure that the Senate passes the higher than for Medicaid, and the program uses a simplified ap- full amount allocated by the Appropriations Committee, and that plication process. the stimulus package includes the remaining $140 million as an For New York City residents already receiving health cover- emergency supplement. age, redetermination for Medicaid and Child Health Plus A & B Food Stamps. Under current law, the Food Stamp Program im- has been temporarily waived. Persons scheduled for redetermi- poses more restrictions on immigrants’ eligibility than any other nation before Jan. 31, 2002, will have their eligibility automatically federal, state, or local program. The rules are complicated, but redetermined for an additional year. most lawfully present immigrants are ineligible for federal food stamps, including many who have lived in the U.S. for decades. NILC INITIATES PUBLIC CHARGE MONITORING PROJECT – The National All U.S. residents face job losses as a result of the September Immigration Law Center has started a project to monitor possible 11th attacks, but many immigrants remain unable to rely on the abuses of public charge rules by the Immigration Naturalization same safety net because of restrictions on the principal safety Service, immigration judges, and State Dept. employees. Indi- net programs. viduals who may have been improperly denied admission to the Advocates believe that the farm bill represents one of the best U.S. or a green card are encouraged to use the Public Charge hopes for restoring food stamps to lawfully present immigrants. Monitoring form enclosed with this issue to report their experi- The farm bill is one of the few major proposals likely to pass this ences to NILC. year that is not directly related to the aftermath of the September Public charge is an immigration law term used to describe per- 11th attacks. As passed on Thursday, October 4, 2001, the House’s sons who depend primarily on the government for their support. version of the bill, H.R. 2646, contains about $70 billion in new A public charge finding can adversely affect individuals’ ability spending over the next 10 years on items supported by agricul- to immigrate to the U.S. or to obtain a green card. In May 1999, ture interests. It also reauthorizes the Food Stamp Program and the INS issued guidance clarifying that immigrants’ use of health includes about $3.25 billion in new spending on food stamps and care and other non-cash benefits will normally not put them at nutrition. But the House-passed bill does not include any resto- risk of being considered a public charge. Nonetheless, rumors in rations of immigrants’ eligibility for food stamps. immigrant communities persist that INS officers, IJs, and consu- Advocates hope to do better in the Senate, where Senator lar officials are asking immigrants about the use of benefits and Tom Harkin (D-IA), chair of the Senate Agriculture Committee, using that information to deny entry to the U.S. or applications and Richard Lugar (R-IN), the ranking minority member, are work- for green cards. ing together to craft a bipartisan bill that soon will be presented The information gathered by the monitoring project will be to the committee. Although variables remain, there is a reason- used to determine the scope of the problem and to develop a able chance that restorations of immigrants’ eligibility for food response. Individuals interested in additional information about stamps could be part of the Lugar-Harkin proposal. The Lugar- the project should contact NILC staff attorney Sara Campos at Harkin proposal will likely be finalized this week. 510-663-8282, ext. 304. Updated information on the status of these proposals is avail- able through the Food Research and Action Center’s web site at DISASTER ASSISTANCE INFORMATION INCLUDED WITH THIS ISSUE OF www.frac.org. IMMIGRANTS’ RIGHTS UPDATE – To assist service providers who may be rendering aid to immigrants in the wake of the September NEW YORK EXTENDS IMMIGRANTS’ ELIGIBILITY FOR HEALTH PROGRAMS 11 terrorist attack, information about immigrant eligibility for di- – The New York Dept. of Health has extended coverage under the saster assistance has been included in this issue of the IMMI- state’s Family Health Plus program to all individuals who are per- GRANTS’ RIGHTS UPDATE. Excerpted from the National Immigra- manently residing in the U.S. under color of law (PRUCOLs) and tion Law Center’s forthcoming GUIDE TO IMMIGRANT ELIGIBIL- “qualified” immigrants, regardless of their date of entry. Family ITY FOR PUBLIC BENEFITS, “Disaster Assistance” describes the Health Plus provides health coverage to persons who do not types of emergency aid provided, the agencies that administer qualify for Medicaid. aid services, and immigrants’ eligibility for the assistance.

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